Ex-PM Najib Razak was sentenced to 12 years in jail after he was found guilty on all seven counts in the first of several multi-million-dollar corruption trials. Najib had pleaded not guilty to the charges of criminal breach of trust, money laundering and abuse of power. The BBC quoted Najib to have said this to reporters "I am surely not satisfied with the result," “This is definitely not the end of the world, because there's a process of appeal, and we hope that we would be successful then”.
The case went to the Court of Appeal and Najib was found guilty. Court of Appeal judge Datuk Abdul Karim Abdul Jalil as the chair of a three-member panel alongside Datuk Haszanah Mehat and Datuk Vazeer Alam Mydin Meera, said “this is one of the most time-consuming appeals we have heard thus far compared to other existing appeals”.
During the trial, Muhammad Shafee had highlighted the misdirection by the trial judge Mohd Nazlan Mohd Ghazali in finding a prima facie case against Najib at the High Court. He also argued that it was fugitive businessman Low Taek Jho and not Najib who had benefited the most in the SRC International transactions as the amount involving Najib’s was only RM42 million. He added “Not only the trial judge misconstrued the entire facts but entire law as well.’’
Najib subsequently appealed to the Federal Court for revision of his conviction. The Federal Court, in dismissing Najib’s application to review his conviction for misappropriating SRC International funds, maintained that the former prime minister was not denied the right to a fair trial in the previous appeal hearings. Najib’s point here was that he had fresh key evidence to introduce as defense in the trial. The Court ruled that Najib's application for a review of the fresh evidence should be rejected as the previous Federal Court decision was made on the correct assessment of the evidence.
We must remember the Pardon’s Board is not a Court of Law that decides on the facts presented and cross examinations of witnesses. The Court decides based on the evidence presented and a balance of probability that is convincing. The working of the Pardon’s Board according to former Malaysian Bar president Salim Bashir Bhaskaran and reported by the Malay Mail (April 22, 2023), are as follows:
- “A pardon is sought by a person who has exhausted has exhausted all their legal remedies in court.”;
- A petition for pardon can be filed by the prisoner himself, his family or by others on his behalf — such as a foreign embassy. (For example, the Selangor Sultan reduced a Philippine citizen’s death sentence to life imprisonment in 2015, after appeals made by the family and the Philippine embassy.);
- The Yang di-Pertuan Agong and state Rulers “hold ultimate discretion to decide on who, when and how pardons are to be exercised”, and added that the law does not make it mandatory for a Ruler to act on the Pardons Board’s advice; “Budi Bicara” of the Ruler weighs heavily on the decision to grant a pardon.
- The prisoners or those allowed to seek a pardon for them can submit “anything relevant” to the Pardons Board when seeking a pardon and agreed this could include court judgments.
This is an opinion of mine based on a neutral stand if PM Najib Razak can be pardoned. The answer is yes based on the following points:
- PM Najib Razak pleaded not guilty but the court found him guilty; It was highlighted there were misdirection by the trial judge Mohd Nazlan Mohd Ghazali in finding a prima facie case against Najib at the High Court; There was a list 18 of instances where Mohd Nazlan had misdirected in law or fact of the findings throughout the trial as claimed and submitted by Najib's lead council;
- The person who benefited most was Low Taek Jho or Jho Low and not Najib in the SRC International transactions. Most of the stolen funds have been recovered and Jho Low is still at large;
- Najib’s pointed that he had fresh evidence to introduce as evidence in his Trial and the judges ruled that Najib's application for a review of the fresh evidence should be rejected;
- Najib was convicted in a 4 to 1 decision, the Chairman Chief Judge of Sabah and Sarawak Datuk Abdul Rahman Sebli was the dissenting the judge. Therefore, the decision that found Najib guilty was not unanimous giving room for questions if Najib can be innocent;
- Najib had said his legal time was under pressure and worked on various other appeals that were concurrently running and did not have enough time to make a complete submission. The request for additional time was not allowed and this is seen as the defendant not given the right to defend himself and justice denied;
- the Yang di-Pertuan Agong and state Rulers hold ultimate discretion to decide on who, when and how pardons are to be exercised and the law does not make it mandatory for a Ruler to act on the advice of the Pardon’s Board. Decisions made by the Rulers are independent of the Pardon’s Board and this is allowed under the constitution. Once the decision is made no one can question it and is treated as a decision following the “rule of law”.
I interviewed a few learned gentlemen from the University of Malaya and arrived to the conclusion that other factors that may be considered in granting Najib a pardon, are the contributions of Najib as prime minister. His development plans and social reforms were well accepted by the people. He addressed the needs of the marginalised segment of the population. He introduced many reforms that benefited the people such as the NKRA and KPI’s for Cabinet Ministers. He made doing business easier and reduced the number of Agencies involved in the approval of investments and licenses. Malaysia ranked highly in the Global Business Competitive Index and economic growth were good. The Business Community in Malaysia were happy with him. He introduced the Urban Transformations Centers (a hub of various Government Service), Klink Satu Malaysia, Kedai Satu Malaysia and BRIM Payments. The direct beneficiaries were average Malaysians.
He was seen as a “Man with a Big Heart” by many Malaysians who belonged to the lower income group. He also broadened the tax base by introducing the GST strengthening the fiscal position of the Government. He kept Government borrowing to sustainable levels. He was visionary in implementing the ERCL project and the MRT Lines to Kajang and Putrajaya. The ECRL project would have eased the pressure for land in the Klang Valley and elp reduce the congestion in the City if implemented according to its original plan. It may have played a pivotal role in development of the East Coast under China’s Belt and Road Initiative.
People may may argue that all of the initiatives were rolled out to enrich Najib himself. However, there are hard evidences that people at all levels of society benefitted. What we need to understand and appreciate is that a pardon is granted for many reasons and need not be explained. If not this time, at a later time Najib can be granted a pardon.
Sivanesan Muthusamy is a Financial Markets Professional, Fintech and Startup Roll Out Strategist. He holds a Master's in Economics (Monetary Policy - Term Structure Analytics) and a degree in Economics (Hons.) Analytical Economics from the University of Malaya. His interests are in various fields and current issues. He is a strong believer in Malaysia and its potential.
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